Must owners pay to replace fencing?
Question: The board sent letters to owners saying the association is replacing wood fencing with vinyl fencing. Owners were not given a chance to vote or choose the replacement fencing. The association pays for outside fencing around individual small backyards, but says any fence replacements between neighbors’ units must be paid for by the unit owners. At $600 per gate, we’re told vinyl gate replacements are cheaper than wood and will last forever. The board warned owners not to put a barbecue within a foot of the vinyl fence because the fence could melt and the owner will have to pay for a new one. Do owners have to pay for fencing or gates?
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Answer: A “fire caution” should be embedded on the vinyl fences and also on an indestructible monument next to the fence so there is no mistake that it is a fire hazard.
It appears that this board is aware of the liability it has caused by choosing vinyl fencing, and instead of taking responsibility for its actions, it has developed a scenario that places the burden on the owner to become legally obligated as the responsible party rather than the association.
Unless the association has a precedent of installing and replacing the individual gates, and presuming the association’s governing documents do not state otherwise, it appears that the gates are intrinsically linked to the owner’s “exclusive use common area.” Therefore, the gates probably are optional features and the individual owner would be responsible for that payment.
In Lamden vs. La Jolla Shores Clubdominium Homeowners Assn., the court used Nahrstedt vs. Lakeside Village Condominium Assn. as its springboard in adopting a new California standard consisting of a “rule of judicial deference to community association board decision making that applies, regardless of an association’s corporate status.” In subsequent review of this rule, Affan vs. Portofino Cove Homeowners Assn., courts were clear that this deference applies only to the “reasoned decision making” of the association and does not “create a blanket immunity for all the decisions and actions” of the association.
Therefore, while owners may be responsible for the cost of replacing gates and fences in exclusive use common areas, that deference could be lost as the board is not absolved of liability in the event of willful or bad decision making, or from failing to perform a modicum of due diligence.
Civil Code section 7231 imposes a requirement on each board director to serve in good faith and in a manner that director reasonably believes to be in the best interest of the association. To meet these standards, the board must make reasonable inquiries and obtain the necessary information to make informed decisions before acting. Here, the board has clearly failed to take these necessary steps if it has selected fencing that poses such an obvious fire hazard and risk to owners.
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Zachary Levine, partner at Wolk & Levine, a business and intellectual property law firm, co-wrote this column. Vanitzian is an arbitrator and mediator. Send questions to P.O. Box 10490, Marina del Rey, CA 90295 or noexit@ mindspring.com.